Surface Transportation Project Delivery Program; Florida DOT Audit #2 Report, 43863-43868 [2019-18092]

Download as PDF Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Notices enhance the quality, utility and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information. The agency will summarize and/or include your comments in the request for OMB’s clearance of this information collection. FOR FURTHER INFORMATION CONTACT: Bonnie Lefko at: bonnie.lefko@faa.gov; or by phone: 405–954–7461. SUPPLEMENTARY INFORMATION: OMB Control Number: 2120–0765. Title: Small Unmanned Aircraft Registration System (sUAS). Form Numbers: None. Type of Review: Renewal of existing collection. Background: The Federal Register Notice with a 60-day comment period soliciting comments on the following collection of information was published on May 9, 2019 (84 FR 20460). There were three comments received. The FAA received two comments in support from EPIC and A4A. EPIC’s further recommendations related to broadcasting location are beyond the scope and authority of what is proposed in this information collection. Another comment was received correcting the FAA’s statutory citation, which the FAA acknowledges and has updated in the 30 day notice. The Secretary of the Department of Transportation (DOT) and the Administrator of the Federal Aviation Administration (FAA) affirmed that all unmanned aircraft, including model aircraft, are aircraft. As such, in accordance with 49 U.S.C. 44101(a) and as further prescribed in 14 CFR part 48, registration is required prior to operation. See 80 FR 63912, 63913 (October 22, 2015). Aircraft registration is necessary to ensure personal accountability among all users of the national airspace system. Aircraft registration also allows the FAA and law enforcement agencies to address non-compliance by providing the means for identifying an aircraft’s owner and operator. Subject to certain exceptions discussed below, aircraft must be registered prior to operation. See 49 U.S.C. 44101–44103. Upon registration, the Administrator must issue a certificate of registration to the aircraft owner. See 49 U.S.C. 44103. Registration, however, does not provide the authority to operate. Persons intending to operate a small unmanned aircraft must operate in accordance with section the FAA Reauthorization Act of 2018 Section 349 (49 U.S.C. 44809), part 107 or part 91, in accordance with a waiver issued under part 107, in accordance with an VerDate Sep<11>2014 16:37 Aug 21, 2019 Jkt 247001 exemption issued under 14 CFR part 11 (including those persons operating under an exemption issued pursuant to 49 U.S.C. 44807), or in conjunction with the issuance of a special airworthiness certificate, and are required to register. In the agency’s 60 day notice, the number of minutes required to register was inadvertently stated as 10 minutes. The number, consistent with our past information collection supporting statements, is 5 minutes, which is reflected in this notice. There is no change to the annual burden. Respondents: Approximately 300,000 affected sUAS registrations and 14,000 de-registrations annually. Frequency: Information is collected on occasion. Estimated Average Burden per Response: 5 minutes per response to register and 3 minutes per response to de-register. Estimated Total Annual Burden: Approximately 51,000 hours. Issued in Oklahoma City, OK, on August 19, 2019. Bonnie Lefko, Program Analyst, FAA, Civil Aviation Registry, AFB–700. [FR Doc. 2019–18139 Filed 8–21–19; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2019–0012] Surface Transportation Project Delivery Program; Florida DOT Audit #2 Report Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). ACTION: Notice, request for comment. AGENCY: SUMMARY: The Surface Transportation Project Delivery Program allows a State to assume FHWA’s environmental responsibilities for review, consultation, and compliance for Federal highway projects. When a State assumes these Federal responsibilities, the State becomes solely responsible and liable for the responsibilities it has assumed, in lieu of FHWA. This program mandates annual audits during each of the first 4 years to ensure the State’s compliance with program requirements. This is the second audit of the Florida Department of Transportation’s (FDOT) performance of its responsibilities under the Surface Transportation Project Delivery Program (National Environmental Policy Act (NEPA) Assignment Program). This notice PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 43863 announces and solicits comments on the second audit report for the FDOT. DATES: Comments must be received on or before September 23, 2019. ADDRESSES: Mail or hand deliver comments to Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12–140, Washington, DC 20590. You may also submit comments electronically at www.regulations.gov. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a selfaddressed, stamped postcard or you may print the acknowledgment page that appears after submitting comments electronically. Anyone can search the electronic form of all comments in any one of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, or labor union). The DOT posts these comments, without edits, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL–14 FDMS), which can be reviewed at www.dot.gov/privacy. FOR FURTHER INFORMATION CONTACT: Ms. Marisel Lopez Cruz, Office of Project Development and Environmental Review, (407) 867–6402, marisel.lopezcruz@dot.gov, Federal Highway Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, or Mr. David Sett, Office of the Chief Counsel, (404) 562–3676, david.sett@ dot.gov, Federal Highway Administration, Department of Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. Office hours are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access An electronic copy of this notice may be downloaded from the specific docket page at www.regulations.gov. Background The Surface Transportation Project Delivery Program, codified at 23 U.S.C. 327, commonly known as the NEPA Assignment Program, allows a State to assume FHWA’s responsibilities for environmental review, consultation, and compliance for Federal highway E:\FR\FM\22AUN1.SGM 22AUN1 43864 Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Notices projects. When a State assumes these Federal responsibilities, the State becomes solely liable for carrying out the responsibilities it has assumed, in lieu of FHWA. Effective December 14, 2016, FDOT assumed FHWA’s responsibilities for environmental review and the responsibilities for reviews under other Federal environmental requirements. Section 327(g) of Title 23, U.S.C., requires the Secretary to conduct annual audits to ensure compliance with the memorandum of understanding during each of the first 4 years of State participation and, after the fourth year, monitor compliance. The results of each audit must be made available for public comment. A final version of the first audit report was published in the Federal Register on August 27, 2018, at 83 FR 43726. This notice announces the availability of the second audit report for the FDOT and solicits comments on the same. Authority: Section 1313 of Public Law 112–141; Section 6005 of Public Law 109–59; 23 U.S.C. 327; 23 CFR 773. Issued on: August 15, 2019. Nicole R. Nason, Administrator, Federal Highway Administration. Surface Transportation Project Delivery Program Draft FHWA Audit #2 of the Florida Department of Transportation May 2017 to April 2018 Executive Summary This is the second audit of the Florida Department of Transportation’s (FDOT) assumption of National Environmental Policy Act (NEPA) responsibilities under the Surface Transportation Project Delivery Program. Under the authority of 23 U.S.C. 327, FDOT and the Federal Highway Administration (FHWA) executed a memorandum of understanding (MOU) on December 14, 2016, whereby FHWA assigned, and FDOT assumed, FHWA’s NEPA responsibilities and liabilities for Federal-aid highway projects and other related environmental reviews for transportation projects in Florida. The FHWA formed a team in January 2018 to conduct an audit of FDOT’s performance according to the terms of the MOU. The team held internal meetings to prepare for an on-site visit to the Florida Division and FDOT offices. Prior to the on-site visit, the team reviewed FDOT’s NEPA project files, FDOT’s response to FHWA’s preaudit information request (PAIR), and FDOT’s NEPA Assignment SelfAssessment Summary Report. The team VerDate Sep<11>2014 16:37 Aug 21, 2019 Jkt 247001 conducted interviews with FDOT and resource Agency staff and prepared preliminary audit results from September 24–28, 2018. The team presented these preliminary observations to FDOT Office of Environmental Management (OEM) leadership on September 28, 2018. The FDOT continues to develop, revise, and implement procedures and processes required to carry out the NEPA Assignment Program. Overall, the team found that FDOT is committed to delivering a successful NEPA Program. This report describes numerous successful practices, two observations, and one non-compliance observation. The FDOT has carried out the responsibilities it has assumed in keeping with the intent of the MOU and FDOT’s application. Through this report, FHWA is notifying FDOT of the one non-compliance observation that require FDOT to take corrective action. By addressing the observations in this report, FDOT will continue to assure a successful program. The report concludes with the status of FHWA’s non-compliance observation from the first audit review (Audit #1), including any FDOT self-imposed corrective actions. Background The purpose of the audits performed under the authority of 23 U.S.C. 327 is to assess a State’s compliance with the provisions of the MOU as well as all applicable Federal statutes, regulations, policies, and guidance. The FHWA’s review and oversight obligation entails the need to collect information to evaluate the success of the NEPA Assignment Program; to evaluate a State’s progress toward achieving its performance measures as specified in the MOU; and to collect information for the administration of the NEPA Assignment Program. This report summarizes the results of the second audit in Florida. Following this audit, FHWA will conduct two annual audits. This second audit report includes a summary discussion that describes progress since the last audit. Scope and Methodology The overall scope of this audit review is defined both in statute (23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as an official and careful examination and verification of accounts and records, especially of financial accounts, by an independent unbiased body. With regard to accounts or financial records, audits may follow a prescribed process or methodology and be conducted by ‘‘auditors’’ who have special training in those processes PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 or methods. The FHWA considers this review to meet the definition of an audit because it is an unbiased, independent, official, and careful examination and verification of records and information about FDOT’s assumption of environmental responsibilities. The team consisted of NEPA subject matter experts from FHWA offices in Arizona, Nebraska, Ohio, Texas, Georgia, and the District of Columbia, as well as staff from FHWA’s Florida Division. The diverse composition of the team, as well as the process of developing the review report and publishing it in the Federal Register, are intended to make this audit an unbiased official action taken by FHWA. The team conducted a careful examination of FDOT policies, guidance, and manuals pertaining to NEPA responsibilities, as well as a representative sample of FDOT’s project files. Other documents, such as the August 2018 PAIR responses, and FDOT’s August 2018 Self-Assessment Summary Report, informed this review. The team interviewed FDOT staff and resource agency staff. This review is organized around six NEPA Assignment Program elements: Program management; documentation and records management; quality assurance/ quality control (QA/QC); legal sufficiency; performance measurement; and training program. In addition, the team considered two cross-cutting focus areas: (1) Consistency between the NEPA documents and planning documents; and (2) Section 4(f) implementation and documentation. The team defined the timeframe for highway project environmental approvals subject to this second audit to be between May 2017 and April 2018, when 898 projects were approved. The team drew both representative and judgmental samples totaling 105 projects from data in FDOT’s online file system, Statewide Environmental Project Tracker (SWEPT). In the context of this report, descriptions of Type 1 Categorical Exclusions (CE) and Type 2 CEs are consistent with FDOT’s Project Development and Environment Manual. The FHWA judgmentally selected all Type 2 CEs (11 projects), all Environmental Assessments (EA) with Findings of No Significant Impacts (1 project), and all Environmental Impact Statements (EIS) with Records of Decision (no projects fell into this category). The FHWA determined the sample size applying a 90 percent confidence level, a 10 percent margin of error to the Type 1 CEs, and then separately to the reevaluations. For the Type 1 CEs (64 projects), FHWA applied a judgmental distribution of the sample E:\FR\FM\22AUN1.SGM 22AUN1 Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Notices based on the percentage of each type of Type 1 CE in the sample universe. For the re-evaluations (29 projects), FHWA applied a judgmental distribution of the sample based on the percentage of each class of action in the sample universe. The FHWA also ensured each district office was reasonably represented for both Type 1 CEs and re-evaluations. The team reviewed projects in all of FDOT’s seven districts. The team submitted a PAIR to FDOT that contained 35 questions covering all 6 NEPA Assignment Program elements. The FDOT responses to the PAIR were used to develop specific follow-up questions for the on-site interviews with FDOT staff. The team conducted a total of 31 interviews. Interview participants included staff from three of FDOT’s seven district offices that were not interviewed in the first audit, District 3 (Chipley), District 4 (Ft. Lauderdale), and District 6 (Miami), and FDOT Central Office. The team interviewed FDOT environmental staff, middle management and executive management, regional representatives from the National Oceanic and Atmospheric Administration (NOAA)— National Marine Fisheries Service (NMFS), the U.S. Coast Guard (USCG), the U.S. Fish and Wildlife Service (USFWS), and the State Historic Preservation Officer (SHPO) from the Florida Department of State, Division of Historic Resources. The team compared FDOT policies and procedures (including the published 2017 Project Development & Environment (PD&E) Manual) to the information obtained during interviews and project file reviews to determine if FDOT’s performance of its MOU responsibilities are in accordance with FDOT policies and procedures and Federal requirements. Individual observations were documented during interviews and reviews and combined under the six NEPA Assignment Program elements. The audit results are described below by program element. Overall Audit Opinion The team recognizes that FDOT’s efforts have been focused on implementing the requirements of the MOU by: Processing and approving projects; refining policies, procedures, and guidance documents; refining the SWEPT tracking system for ‘‘official project files’’; training staff; implementing a QA/QC Plan; and conducting a self-assessment for monitoring compliance with the assumed responsibilities. The team found evidence of FDOT’s continuing efforts to train staff in clarifying the VerDate Sep<11>2014 16:37 Aug 21, 2019 Jkt 247001 roles and responsibilities of FDOT staff, and in educating staff in an effort to assure compliance with all of the assigned responsibilities. During the second audit, the team identified numerous successful practices, two observations, and one non-compliance observation that FDOT will need to address through corrective actions. These results came from a review of FDOT procedures, project file documentation, and interviews with FDOT and resource agencies. The FDOT has carried out the responsibilities it has assumed consistent with the intent of the MOU and FDOT’s application. By addressing the observations in this report, FDOT will continue to assure a successful program. Successful Practices and Observations Successful practices are practices that the team believes are positive, and encourages FDOT to consider continuing or expanding those programs in the future. The team identified numerous successful practices in this report. Observations are items the team would like to draw FDOT’s attention to, which may improve processes, procedures, and/or outcomes. The team identified two observations in this report. A non-compliance observation is an instance where the team finds the State is not in compliance or is deficient with regard to a Federal regulation, statute, guidance, policy, State procedure, or the MOU. Non-compliance may also include instances where the State has failed to secure or maintain adequate personnel and/or financial resources to carry out the responsibilities they have assumed. The FHWA expects the State to develop and implement corrective actions to address all non-compliance observations. The team identified one non-compliance observation during this second audit. The team acknowledges that sharing initial results during the site visit closeout and sharing the draft audit report with FDOT provides them the opportunity to begin implementing corrective actions to improve the program. The FHWA will also consider actions taken by FDOT to address these observations as part of the scope of Audit #3. The Audit Report addresses all six MOU program elements as separate discussions. Program Management Successful Practices The team learned that FDOT has maintained its good working PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 43865 relationship with the two new resource agency staff interviewed—USCG and NOAA–NMFS. They stated that FDOT coordinated any changes in their program with the Agency to ensure satisfaction with their regulatory requirements and were very pleased with the coordination by FDOT at the district and OEM level. The USCG stated that the Florida Efficient Transportation Decision Making System facilitates their early involvement and coordination. The FHWA applauds this practice. During interviews, FHWA learned of good internal communication between OEM and the districts regarding SWEPT assistance. This includes the assistance provided by OEM with the SWEPT hotline and one district uses a successful single SWEPT point of contact for internal consistency purposes. In addition, OEM continues to promote training on environmental and NEPA Assignment topics, and annual PD&E Manual updates on all topics, as needed. The FDOT/OEM uses a spreadsheet for internal purposes to track policy updates and procedures received from FHWA and the actions they took to address. This practice reflects transparency and awareness by FDOT on changes to keep current with FHWA requirements under the MOU. The team learned through interviews, in some instances, that the District Director and/or Environmental Manager review NEPA documents as an additional level of QA/QC on projects of interest. This practice shows local ownership and pride in districts wanting to do the best job they can do under NEPA Assignment, beyond what OEM may require. Observation #1: FDOT’s identification and documentation of commitments may result in mitigation required by Federal regulation. There are several program elements that lead to this observation. The provisions on ‘‘Commitment’’ in the FDOT PD&E Manual (e.g., Section 22.1.1) do not fully implement FHWA requirements to include in the environmental document all mitigation measures stated as commitments (23 CFR 771.105(a) and 771.109(b)). The identification of project impacts and the documentation of commitments must demonstrate that FDOT has reasonably considered the significance of a project’s impacts within a NEPA approval appropriate to the project’s class of action. The team also found some of the NEPA documents reviewed make a general commitment regarding intent to obtain a permit, but do not address the E:\FR\FM\22AUN1.SGM 22AUN1 43866 Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Notices project impacts associated with the permit or the commitments to avoid, mitigate, or minimize the impacts. Citing the need for a permit does not fully meet the requirement to document commitments to address project impacts at the time of a NEPA approval. In addition, some FDOT project files referenced standard specifications in lieu of identifying project specific commitments to address project impacts in the NEPA document, which does not align with FHWA policy. The FHWA Audit interviews and project file review confirm these findings (8 projects). Observation #2: Endangered Species Act (ESA) finding was unsupported on certain projects. The team identified 18 project files with a ‘‘no effect’’ ESA finding based solely on a description of the project’s scope. The FHWA policy and guidance (February 2002 FHWA Management of the Endangered Species Act (ESA) Environmental Analysis and Consultation Process guidance memorandum (https:// www.environment.fhwa.dot.gov/ legislation/other_legislation/natural/ laws_esaguide.aspx)) states that the ESA evaluation of impacts is dependent on the scope of the project, as well as ecological importance and distribution of the affected species, and intensity of potential impacts of the project. The team identified four project files with a ‘‘no effect’’ ESA finding which referenced a Programmatic Biological Opinion between USFWS and other entities, to which FDOT is not a signatory, including some that provide species-specific consultation ‘‘keys’’ to support a ‘‘no effect’’ finding. The team learned from an interview with USFWS staff that FDOT should not specifically reference such ‘‘keys’’ as part of their informal and/or formal Section 7 ESA processes unless and until FDOT becomes a party to those programmatic agreements. Also, the team found that FDOT used ‘‘keys’’ as support for project impact decisions for species which do not have ‘‘keys.’’ Finally, FDOT’s PD&E Manual does not include a procedure providing for use of the ‘‘keys’’ and does not address how the ‘‘keys’’ should be applied when making ESA findings. Since receiving the draft audit report, FDOT reported to FHWA that it has coordinated with USFWS in order to address this observation, developed training and updated its guidance addressing this observation. VerDate Sep<11>2014 16:37 Aug 21, 2019 Jkt 247001 Quality Assurance/Quality Control Training Program Successful Practices From the PAIR and during the interviews, FDOT staff provided evidence of many new QA/QC tools using directions, forms, and procedures that will improve documentation and record keeping and may address many of the projects contained within the non-compliance observation of the 2017 Audit and FDOT’s 2017 SelfAssessment. These new tools are likely to reduce the risk of future noncompliant projects through enhanced QA/QC. Examples of these QA/QC improved tools include a Consultant QC Plan, a Natural Resource Evaluation template, and a Section 106 Memorandum of Agreement for Adverse Impacts. The FDOT has continued to update its PD&E Manual to ensure that it encompasses all new applicable laws, regulations, and guidance. The FDOT has a dedicated person responsible for coordinating an annual PD&E Manual update. The FDOT has an intense vetting process for the PD&E Manual update. The draft changes are shared with subject matter experts and then undergo peer, District, and management reviews. Resource agencies may also review changes as needed. The update will include new direction to document preparers that specifies when additional project documentation is needed. Many of these additions stem from the 2017 Audit findings and FDOTs 2017 SelfAssessment. The PD&E Manual update process is likely to eliminate many of the documentation issues found by FHWA in the 2017 and 2018 Audits. Through interviews with the OEM leadership the team learned that rather than preparing an annual training plan, they have a training program that is constantly being assessed, revised, and updated as an on-line program. The program includes training on a wide variety of subjects, and training is delivered both face-to-face and virtually. The FDOT staff said that training is a common topic of discussion of leadership as well as staff, including frequently asking about needed training. Legal Sufficiency The team’s review of FDOT’s legal sufficiency program found that FDOT has structured the legal sufficiency process for the NEPA Assignment Program by having in-house counsel, as well as outside counsel with NEPA experience, available. We appreciate that FDOT has chosen to house their Special Counsel for Environmental Affairs and two staff attorneys under the direct supervision of the FDOT Deputy General Counsel. While no legal sufficiency determinations have been made by FDOT during the audit time frame, FDOT’s Office of General Counsel (OGC) participates in monthly coordination meetings and topic-specific meetings with OEM and the districts. They also review other documents when requested for legal input. There is close collaboration throughout the process amongst and between OGC, OEM, and the district attorneys. PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 Successful Practices The team learned through interviews FDOT closely tracks training rosters and registrations that evidence a broad number of training events to a high number of people. Over the past 12–14 months, FDOT trained over 2,000 people through 36 courses. The team learned that OEM is always looking at the training program to find ways to augment it. For example, FDOT is now working with the SHPO staff to develop topic-specific Webinars on how information for the SHPO is to be organized and projects documented. The FDOT also has worked with NOAA–NMFS on their concerns in developing training. These trainings, along with a new short Web-based training module on producing environmental documents, are waiting to be uploaded to the OEM website. The OEM leadership indicated in an interview that they have a number of staff that are new to FDOT, and, in general, have less than 5 years of experience. These new staff members were mentored by seasoned staff to serve as a resource to help them understand FDOT’s procedures and the key issues in NEPA. By monitoring the performance measures on compliance, OEM leadership indicate the mentoring is a successful practice. Performance Measures The FDOT Self-Assessment Summary Report contained the results of FDOT’s second report of its assessment of the NEPA Assignment Program and FDOT procedures compliance. This assessment, for the period between May 1, 2017, and April 30, 2018, entailed review of project files as well as results from a survey of Agency satisfaction. The report also included a discussion of FDOT’s progress in meeting the performance measures. During the report period, there were no qualifying projects for Legal Sufficiency, NEPA Issue Resolution, and NEPA Approval Time Savings measures. E:\FR\FM\22AUN1.SGM 22AUN1 Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Notices Successful Practices The FDOT has 14 performance metrics to monitor and assess accomplishment of the 4 performance measures in the MOU, Section 10.2.1. The FDOT is actively monitoring these performance measures. Data for the performance metrics are generated and reported quarterly and annually in SWEPT. If FDOT identifies indicators that could affect their performance measures they can promptly take actions to address them. The OEM leadership stated in interviews that the FDOT timeliness measure is used both as a way to streamline their review process and to understand it better. For example, they told the team that FDOT has changed some of the time reporting measures for environmental review staff. Project review duration includes a need for every project to go through the electronic review comments (ERC) process first and then a formal review and approval period in SWEPT. When in SWEPT, there is a review process with a number of days assigned. The FDOT realized for certain projects, ones that have minor impacts, no ERC review was necessary which further streamlined the project review process. The OEM leadership also stated in an interview that the 30-day review period is being constantly monitored in order to ensure if a modification to procedure is needed, it can be made. It was also stated that during the first two rating periods no modification to the review period has been needed. Documentation and Records Management The FDOT continues to use SWEPT as the NEPA file of record for federally funded projects. The FDOT has implemented several process improvements within SWEPT. Communication during the second audit cycle allowed staff to clarify many project level observations within the Audit process. The FDOT and FHWA have committed to continue communications to resolve issues identified within the audit process. Non-Compliance Observation #1: Some FDOT project files contain insufficient documentation to support the environmental analysis or decision. Both the MOU (subpart 10.2.1) and FDOT’s PD&E Manual specify that documentation is needed to support compliance. The SWEPT has been identified as FDOT’s project file of record, in which FDOT maintains approved reevaluations, CEs, EAs, and EISs. The team reviewed 105 projects for the 2018 Audit #2 that constituted a VerDate Sep<11>2014 16:37 Aug 21, 2019 Jkt 247001 statistically valid sample. As part of the initial project file review, the team observed that 54 of the 105 project files reviewed lacked documentation in SWEPT to support the environmental analysis or the basis for an FDOT decision. In some cases, there were multiple observations for one project. For example, one project file did not contain documentation of coordination with FHWA or USCG for the required (23 CFR 650.805 and 23 CFR 650.807) navigability assessment in order to support a permit determination. Additional examples, where the team observed documentation deficiencies included commitments, planning consistency, and mitigation. The team also observed that some commitments to address project impacts through mitigation, avoidance, and minimization were not documented at the time of NEPA approval. When the environmental document lacks commitments for important project impacts, the project record does not reflect a complete consideration of the significance of a project’s impacts. Another consequence is that some commitments are added after the NEPA decision, are not tracked, or get dropped, which is not in accordance with Federal regulations. (23 CFR 771.105(a), 23 CFR 771.105(d), and 23 CFR 771.109(d)). Finally, project files were observed that did not include the Project Commitment Record for documenting commitments as required by the 2017 PD&E Manual. The team’s comments on these projects were shared with FDOT for their consideration and the team received responses from FDOT. The FHWA and FDOT have productively worked together to successfully resolve insufficient documentation for 23 projects and uploaded existing documentation in SWEPT for 18 projects. The FDOT indicated that they have implemented or committed to implementing process improvements to address the deficiencies. The FDOT is expected to continue implementation of corrective actions that would address these issues. Update from 2017 Audit #1 NonCompliance Observation #1: Some FDOT project files contain insufficient documentation to support the environmental analysis or decision. The FHWA reported a noncompliance observation related to some FDOT project files that lacked documentation to support the environmental analysis or decision as part of Audit #1. This non-compliance observation is based on a review that resulted in observations on 47 projects, several of which had deficient PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 43867 documentation for more than one issue. The FDOT and FHWA have met over the past year and have productively worked together to resolve documentation issues from the previous audit. The FHWA shared comments on these projects with FDOT and they provided written responses. Based on these responses, FHWA and FDOT were able to successfully address many documentation issues through resolving a project observation (22 projects), FDOT uploading missing documentation in SWEPT (5 projects), or FDOT implementing or committed to implementing process improvements to address procedural deficiencies (39 projects). For example, FDOT updated their electronic Type 1 CE form in SWEPT to require certain supporting documentation be uploaded, which was confirmed through the Audit #2 FDOT staff interviews and project file reviews. The FDOT also included a direct link to the State Transportation Improvement Plan or Transportation Improvement Plan to ensure adequate documentation of planning consistency for all classes of action. The FDOT has made commendable strides to document planning consistency at NEPA approval. However, documentation of consistency with the metropolitan long-range transportation plans was missing for several projects and for a variety of classes of action. In addition, the 2018 FDOT Self-Assessment Summary states that FDOT initiated and completed a number of SWEPT system and programmatic enhancements to address the missing documentation noted during Audit #1. The FDOT is expected to continue implementation of corrective actions that would address these issues. Finalizing This Report The FHWA provided a draft of the audit report to FDOT for a 14-day review and comment period. The team considered FDOT’s comments in this draft audit report. The FHWA is publishing this notice in the Federal Register for a 30-day comment period in accordance with 23 U.S.C. 327(g). No later than 60 days after the close of the comment period, FHWA will address all comments submitted to finalize this draft audit report pursuant to 23 U.S.C. 327(g)(B). Subsequently, FHWA will publish the final audit report in the Federal Register. The FHWA will consider the results of this audit in preparing the scope of the next annual audit. The next audit report will include a summary that describes the status of FDOT’s E:\FR\FM\22AUN1.SGM 22AUN1 43868 Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Notices corrective and other actions taken in response to this audit’s conclusions. [FR Doc. 2019–18092 Filed 8–21–19; 8:45 am] BILLING CODE 4910–22–P DEPARTMENT OF THE TREASURY Internal Revenue Service Proposed Extension of Information Collection Request Submitted for Public Comment; Comment Request for Form 1097–BTC Internal Revenue Service (IRS), Treasury. ACTION: Notice and request for comments. AGENCY: SUMMARY: The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the IRS is soliciting comments concerning Form 1097–BTC, Bond Tax Credit. DATES: Written comments should be received on or before October 21, 2019 to be assured of consideration. ADDRESSES: Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW, Washington, DC 20224. Requests for additional information or copies of the regulations should be directed to R. Joseph Durbala, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW, Washington DC 20224, or through the internet, at RJoseph.Durbala@irs.gov. SUPPLEMENTARY INFORMATION: Title: Election to Expense Certain Depreciable Assets. OMB Number: 1545–2197. Form Number: 1097–BTC. Abstract: Form 1097–BTC, Bond Tax Credit, is an information return used to report tax credit bond credits distributed to shareholders. Shareholders of the RIC include in income, their proportionate share of the interest income attributable to the credits and are allowed the proportionate share of credits. (Code section 853A(b)(3)). A RIC must report the shareholder’s proportionate share of credits and gross income after the close of the RIC’s tax year. Form 1097–BTC, Bond Tax Credit, has been designed to report to the taxpayers and the IRS the tax credit distributed. Current Actions: There is no change to the burden previously approved by VerDate Sep<11>2014 16:37 Aug 21, 2019 Jkt 247001 OMB. This form is being submitted for renewal purposes only. Type of Review: Extension of a currently approved collection. Affected Public: Businesses and other for-profit organizations, and not-forprofit institutions. Estimated Number of Respondents: 212. Estimated Time per Respondent: 19 mins. Estimated Total Annual Burden Hours: 67. The following paragraph applies to all the collections of information covered by this notice: An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Desired Focus of Comments: The Internal Revenue Service (IRS) is particularly interested in comments that: • Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; • Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; • Enhance the quality, utility, and clarity of the information to be collected; and • Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., by permitting electronic submissions of responses. Comments submitted in response to this notice will be summarized and/or included in the ICR for OMB approval of the extension of the information collection; they will also become a matter of public record. Approved: August 15, 2019. R. Joseph Durbala, IRS Tax Analyst. [FR Doc. 2019–18098 Filed 8–21–19; 8:45 am] BILLING CODE 4830–01–P PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 DEPARTMENT OF THE TREASURY Internal Revenue Service Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee Internal Revenue Service (IRS), Treasury. ACTION: Notice of meeting. AGENCY: SUMMARY: An open meeting of the Taxpayer Advocacy Panel’s Taxpayer Communications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service. DATES: The meeting will be held Tuesday, September 17, 2019. FOR FURTHER INFORMATION CONTACT: Carolyn Duckworth at 1–888–912–1227 or (314) 339–1670. SUPPLEMENTARY INFORMATION: Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel’s Taxpayer Communications Project Committee will be held Tuesday, September 17, 2019, at 2:00 p.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited time and structure of meeting, notification of intent to participate must be made with Carolyn Duckworth. For more information please contact Carolyn Duckworth at 1–888–912–1227 or (314) 339–1670, or write TAP Office, 1222 Spruce, St. Louis, MO 63103 or contact us at the website: https:// www.improveirs.org. The agenda will include various IRS issues. Dated: August 19, 2019. Kevin Brown, Acting Director, Taxpayer Advocacy Panel. [FR Doc. 2019–18086 Filed 8–21–19; 8:45 am] BILLING CODE 4830–01–P DEPARTMENT OF THE TREASURY Periodic Meeting of the U.S. Department of the Treasury Tribal Advisory Committee Department of the Treasury. Notice of meeting. AGENCY: ACTION: SUMMARY: This notice announces that the U.S. Department of the Treasury Tribal Advisory Committee (TTAC) will convene for a public meeting on Wednesday, September 18, 2019, from 9:00 a.m.–4:30 p.m. Eastern Time in the E:\FR\FM\22AUN1.SGM 22AUN1

Agencies

[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Notices]
[Pages 43863-43868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18092]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2019-0012]


Surface Transportation Project Delivery Program; Florida DOT 
Audit #2 Report

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Notice, request for comment.

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SUMMARY: The Surface Transportation Project Delivery Program allows a 
State to assume FHWA's environmental responsibilities for review, 
consultation, and compliance for Federal highway projects. When a State 
assumes these Federal responsibilities, the State becomes solely 
responsible and liable for the responsibilities it has assumed, in lieu 
of FHWA. This program mandates annual audits during each of the first 4 
years to ensure the State's compliance with program requirements. This 
is the second audit of the Florida Department of Transportation's 
(FDOT) performance of its responsibilities under the Surface 
Transportation Project Delivery Program (National Environmental Policy 
Act (NEPA) Assignment Program). This notice announces and solicits 
comments on the second audit report for the FDOT.

DATES: Comments must be received on or before September 23, 2019.

ADDRESSES: Mail or hand deliver comments to Docket Management Facility: 
U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12-
140, Washington, DC 20590. You may also submit comments electronically 
at www.regulations.gov. All comments should include the docket number 
that appears in the heading of this document. All comments received 
will be available for examination and copying at the above address from 
9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. 
Those desiring notification of receipt of comments must include a self-
addressed, stamped postcard or you may print the acknowledgment page 
that appears after submitting comments electronically. Anyone can 
search the electronic form of all comments in any one of our dockets by 
the name of the individual submitting the comment (or signing the 
comment, if submitted on behalf of an association, business, or labor 
union). The DOT posts these comments, without edits, including any 
personal information the commenter provides, to www.regulations.gov, as 
described in the system of records notice (DOT/ALL-14 FDMS), which can 
be reviewed at www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT: Ms. Marisel Lopez Cruz, Office of 
Project Development and Environmental Review, (407) 867-6402, 
[email protected], Federal Highway Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590, or Mr. David Sett, Office of the Chief Counsel, (404) 562-3676, 
[email protected], Federal Highway Administration, Department of 
Transportation, 60 Forsyth Street 8M5, Atlanta, GA 30303. Office hours 
are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    An electronic copy of this notice may be downloaded from the 
specific docket page at www.regulations.gov.

Background

    The Surface Transportation Project Delivery Program, codified at 23 
U.S.C. 327, commonly known as the NEPA Assignment Program, allows a 
State to assume FHWA's responsibilities for environmental review, 
consultation, and compliance for Federal highway

[[Page 43864]]

projects. When a State assumes these Federal responsibilities, the 
State becomes solely liable for carrying out the responsibilities it 
has assumed, in lieu of FHWA. Effective December 14, 2016, FDOT assumed 
FHWA's responsibilities for environmental review and the 
responsibilities for reviews under other Federal environmental 
requirements.
    Section 327(g) of Title 23, U.S.C., requires the Secretary to 
conduct annual audits to ensure compliance with the memorandum of 
understanding during each of the first 4 years of State participation 
and, after the fourth year, monitor compliance. The results of each 
audit must be made available for public comment. A final version of the 
first audit report was published in the Federal Register on August 27, 
2018, at 83 FR 43726. This notice announces the availability of the 
second audit report for the FDOT and solicits comments on the same.

    Authority:  Section 1313 of Public Law 112-141; Section 6005 of 
Public Law 109-59; 23 U.S.C. 327; 23 CFR 773.

    Issued on: August 15, 2019.
Nicole R. Nason,
Administrator, Federal Highway Administration.

Surface Transportation Project Delivery Program

Draft FHWA Audit #2 of the Florida Department of Transportation

May 2017 to April 2018

Executive Summary

    This is the second audit of the Florida Department of 
Transportation's (FDOT) assumption of National Environmental Policy Act 
(NEPA) responsibilities under the Surface Transportation Project 
Delivery Program. Under the authority of 23 U.S.C. 327, FDOT and the 
Federal Highway Administration (FHWA) executed a memorandum of 
understanding (MOU) on December 14, 2016, whereby FHWA assigned, and 
FDOT assumed, FHWA's NEPA responsibilities and liabilities for Federal-
aid highway projects and other related environmental reviews for 
transportation projects in Florida.
    The FHWA formed a team in January 2018 to conduct an audit of 
FDOT's performance according to the terms of the MOU. The team held 
internal meetings to prepare for an on-site visit to the Florida 
Division and FDOT offices. Prior to the on-site visit, the team 
reviewed FDOT's NEPA project files, FDOT's response to FHWA's pre-audit 
information request (PAIR), and FDOT's NEPA Assignment Self-Assessment 
Summary Report. The team conducted interviews with FDOT and resource 
Agency staff and prepared preliminary audit results from September 24-
28, 2018. The team presented these preliminary observations to FDOT 
Office of Environmental Management (OEM) leadership on September 28, 
2018.
    The FDOT continues to develop, revise, and implement procedures and 
processes required to carry out the NEPA Assignment Program. Overall, 
the team found that FDOT is committed to delivering a successful NEPA 
Program. This report describes numerous successful practices, two 
observations, and one non-compliance observation. The FDOT has carried 
out the responsibilities it has assumed in keeping with the intent of 
the MOU and FDOT's application. Through this report, FHWA is notifying 
FDOT of the one non-compliance observation that require FDOT to take 
corrective action. By addressing the observations in this report, FDOT 
will continue to assure a successful program. The report concludes with 
the status of FHWA's non-compliance observation from the first audit 
review (Audit #1), including any FDOT self-imposed corrective actions.

Background

    The purpose of the audits performed under the authority of 23 
U.S.C. 327 is to assess a State's compliance with the provisions of the 
MOU as well as all applicable Federal statutes, regulations, policies, 
and guidance. The FHWA's review and oversight obligation entails the 
need to collect information to evaluate the success of the NEPA 
Assignment Program; to evaluate a State's progress toward achieving its 
performance measures as specified in the MOU; and to collect 
information for the administration of the NEPA Assignment Program. This 
report summarizes the results of the second audit in Florida. Following 
this audit, FHWA will conduct two annual audits. This second audit 
report includes a summary discussion that describes progress since the 
last audit.

Scope and Methodology

    The overall scope of this audit review is defined both in statute 
(23 U.S.C. 327) and the MOU (Part 11). An audit generally is defined as 
an official and careful examination and verification of accounts and 
records, especially of financial accounts, by an independent unbiased 
body. With regard to accounts or financial records, audits may follow a 
prescribed process or methodology and be conducted by ``auditors'' who 
have special training in those processes or methods. The FHWA considers 
this review to meet the definition of an audit because it is an 
unbiased, independent, official, and careful examination and 
verification of records and information about FDOT's assumption of 
environmental responsibilities.
    The team consisted of NEPA subject matter experts from FHWA offices 
in Arizona, Nebraska, Ohio, Texas, Georgia, and the District of 
Columbia, as well as staff from FHWA's Florida Division. The diverse 
composition of the team, as well as the process of developing the 
review report and publishing it in the Federal Register, are intended 
to make this audit an unbiased official action taken by FHWA.
    The team conducted a careful examination of FDOT policies, 
guidance, and manuals pertaining to NEPA responsibilities, as well as a 
representative sample of FDOT's project files. Other documents, such as 
the August 2018 PAIR responses, and FDOT's August 2018 Self-Assessment 
Summary Report, informed this review. The team interviewed FDOT staff 
and resource agency staff. This review is organized around six NEPA 
Assignment Program elements: Program management; documentation and 
records management; quality assurance/quality control (QA/QC); legal 
sufficiency; performance measurement; and training program. In 
addition, the team considered two cross-cutting focus areas: (1) 
Consistency between the NEPA documents and planning documents; and (2) 
Section 4(f) implementation and documentation.
    The team defined the timeframe for highway project environmental 
approvals subject to this second audit to be between May 2017 and April 
2018, when 898 projects were approved. The team drew both 
representative and judgmental samples totaling 105 projects from data 
in FDOT's online file system, Statewide Environmental Project Tracker 
(SWEPT). In the context of this report, descriptions of Type 1 
Categorical Exclusions (CE) and Type 2 CEs are consistent with FDOT's 
Project Development and Environment Manual. The FHWA judgmentally 
selected all Type 2 CEs (11 projects), all Environmental Assessments 
(EA) with Findings of No Significant Impacts (1 project), and all 
Environmental Impact Statements (EIS) with Records of Decision (no 
projects fell into this category). The FHWA determined the sample size 
applying a 90 percent confidence level, a 10 percent margin of error to 
the Type 1 CEs, and then separately to the reevaluations. For the Type 
1 CEs (64 projects), FHWA applied a judgmental distribution of the 
sample

[[Page 43865]]

based on the percentage of each type of Type 1 CE in the sample 
universe. For the re-evaluations (29 projects), FHWA applied a 
judgmental distribution of the sample based on the percentage of each 
class of action in the sample universe. The FHWA also ensured each 
district office was reasonably represented for both Type 1 CEs and re-
evaluations. The team reviewed projects in all of FDOT's seven 
districts.
    The team submitted a PAIR to FDOT that contained 35 questions 
covering all 6 NEPA Assignment Program elements. The FDOT responses to 
the PAIR were used to develop specific follow-up questions for the on-
site interviews with FDOT staff.
    The team conducted a total of 31 interviews. Interview participants 
included staff from three of FDOT's seven district offices that were 
not interviewed in the first audit, District 3 (Chipley), District 4 
(Ft. Lauderdale), and District 6 (Miami), and FDOT Central Office. The 
team interviewed FDOT environmental staff, middle management and 
executive management, regional representatives from the National 
Oceanic and Atmospheric Administration (NOAA)--National Marine 
Fisheries Service (NMFS), the U.S. Coast Guard (USCG), the U.S. Fish 
and Wildlife Service (USFWS), and the State Historic Preservation 
Officer (SHPO) from the Florida Department of State, Division of 
Historic Resources.
    The team compared FDOT policies and procedures (including the 
published 2017 Project Development & Environment (PD&E) Manual) to the 
information obtained during interviews and project file reviews to 
determine if FDOT's performance of its MOU responsibilities are in 
accordance with FDOT policies and procedures and Federal requirements. 
Individual observations were documented during interviews and reviews 
and combined under the six NEPA Assignment Program elements. The audit 
results are described below by program element.

Overall Audit Opinion

    The team recognizes that FDOT's efforts have been focused on 
implementing the requirements of the MOU by: Processing and approving 
projects; refining policies, procedures, and guidance documents; 
refining the SWEPT tracking system for ``official project files''; 
training staff; implementing a QA/QC Plan; and conducting a self-
assessment for monitoring compliance with the assumed responsibilities. 
The team found evidence of FDOT's continuing efforts to train staff in 
clarifying the roles and responsibilities of FDOT staff, and in 
educating staff in an effort to assure compliance with all of the 
assigned responsibilities.
    During the second audit, the team identified numerous successful 
practices, two observations, and one non-compliance observation that 
FDOT will need to address through corrective actions. These results 
came from a review of FDOT procedures, project file documentation, and 
interviews with FDOT and resource agencies.
    The FDOT has carried out the responsibilities it has assumed 
consistent with the intent of the MOU and FDOT's application. By 
addressing the observations in this report, FDOT will continue to 
assure a successful program.

Successful Practices and Observations

    Successful practices are practices that the team believes are 
positive, and encourages FDOT to consider continuing or expanding those 
programs in the future. The team identified numerous successful 
practices in this report. Observations are items the team would like to 
draw FDOT's attention to, which may improve processes, procedures, and/
or outcomes. The team identified two observations in this report.
    A non-compliance observation is an instance where the team finds 
the State is not in compliance or is deficient with regard to a Federal 
regulation, statute, guidance, policy, State procedure, or the MOU. 
Non-compliance may also include instances where the State has failed to 
secure or maintain adequate personnel and/or financial resources to 
carry out the responsibilities they have assumed. The FHWA expects the 
State to develop and implement corrective actions to address all non-
compliance observations. The team identified one non-compliance 
observation during this second audit.
    The team acknowledges that sharing initial results during the site 
visit closeout and sharing the draft audit report with FDOT provides 
them the opportunity to begin implementing corrective actions to 
improve the program. The FHWA will also consider actions taken by FDOT 
to address these observations as part of the scope of Audit #3.
    The Audit Report addresses all six MOU program elements as separate 
discussions.

Program Management

Successful Practices
    The team learned that FDOT has maintained its good working 
relationship with the two new resource agency staff interviewed--USCG 
and NOAA-NMFS. They stated that FDOT coordinated any changes in their 
program with the Agency to ensure satisfaction with their regulatory 
requirements and were very pleased with the coordination by FDOT at the 
district and OEM level. The USCG stated that the Florida Efficient 
Transportation Decision Making System facilitates their early 
involvement and coordination. The FHWA applauds this practice.
    During interviews, FHWA learned of good internal communication 
between OEM and the districts regarding SWEPT assistance. This includes 
the assistance provided by OEM with the SWEPT hotline and one district 
uses a successful single SWEPT point of contact for internal 
consistency purposes. In addition, OEM continues to promote training on 
environmental and NEPA Assignment topics, and annual PD&E Manual 
updates on all topics, as needed.
    The FDOT/OEM uses a spreadsheet for internal purposes to track 
policy updates and procedures received from FHWA and the actions they 
took to address. This practice reflects transparency and awareness by 
FDOT on changes to keep current with FHWA requirements under the MOU.
    The team learned through interviews, in some instances, that the 
District Director and/or Environmental Manager review NEPA documents as 
an additional level of QA/QC on projects of interest. This practice 
shows local ownership and pride in districts wanting to do the best job 
they can do under NEPA Assignment, beyond what OEM may require.
    Observation #1: FDOT's identification and documentation of 
commitments may result in mitigation required by Federal regulation.
    There are several program elements that lead to this observation. 
The provisions on ``Commitment'' in the FDOT PD&E Manual (e.g., Section 
22.1.1) do not fully implement FHWA requirements to include in the 
environmental document all mitigation measures stated as commitments 
(23 CFR 771.105(a) and 771.109(b)). The identification of project 
impacts and the documentation of commitments must demonstrate that FDOT 
has reasonably considered the significance of a project's impacts 
within a NEPA approval appropriate to the project's class of action.
    The team also found some of the NEPA documents reviewed make a 
general commitment regarding intent to obtain a permit, but do not 
address the

[[Page 43866]]

project impacts associated with the permit or the commitments to avoid, 
mitigate, or minimize the impacts. Citing the need for a permit does 
not fully meet the requirement to document commitments to address 
project impacts at the time of a NEPA approval. In addition, some FDOT 
project files referenced standard specifications in lieu of identifying 
project specific commitments to address project impacts in the NEPA 
document, which does not align with FHWA policy. The FHWA Audit 
interviews and project file review confirm these findings (8 projects).
    Observation #2: Endangered Species Act (ESA) finding was 
unsupported on certain projects.
    The team identified 18 project files with a ``no effect'' ESA 
finding based solely on a description of the project's scope. The FHWA 
policy and guidance (February 2002 FHWA Management of the Endangered 
Species Act (ESA) Environmental Analysis and Consultation Process 
guidance memorandum (https://www.environment.fhwa.dot.gov/legislation/other_legislation/natural/laws_esaguide.aspx)) states that the ESA 
evaluation of impacts is dependent on the scope of the project, as well 
as ecological importance and distribution of the affected species, and 
intensity of potential impacts of the project.
    The team identified four project files with a ``no effect'' ESA 
finding which referenced a Programmatic Biological Opinion between 
USFWS and other entities, to which FDOT is not a signatory, including 
some that provide species-specific consultation ``keys'' to support a 
``no effect'' finding. The team learned from an interview with USFWS 
staff that FDOT should not specifically reference such ``keys'' as part 
of their informal and/or formal Section 7 ESA processes unless and 
until FDOT becomes a party to those programmatic agreements. Also, the 
team found that FDOT used ``keys'' as support for project impact 
decisions for species which do not have ``keys.'' Finally, FDOT's PD&E 
Manual does not include a procedure providing for use of the ``keys'' 
and does not address how the ``keys'' should be applied when making ESA 
findings.
    Since receiving the draft audit report, FDOT reported to FHWA that 
it has coordinated with USFWS in order to address this observation, 
developed training and updated its guidance addressing this 
observation.

Quality Assurance/Quality Control

Successful Practices
    From the PAIR and during the interviews, FDOT staff provided 
evidence of many new QA/QC tools using directions, forms, and 
procedures that will improve documentation and record keeping and may 
address many of the projects contained within the non-compliance 
observation of the 2017 Audit and FDOT's 2017 Self-Assessment. These 
new tools are likely to reduce the risk of future non-compliant 
projects through enhanced QA/QC. Examples of these QA/QC improved tools 
include a Consultant QC Plan, a Natural Resource Evaluation template, 
and a Section 106 Memorandum of Agreement for Adverse Impacts.
    The FDOT has continued to update its PD&E Manual to ensure that it 
encompasses all new applicable laws, regulations, and guidance. The 
FDOT has a dedicated person responsible for coordinating an annual PD&E 
Manual update. The FDOT has an intense vetting process for the PD&E 
Manual update. The draft changes are shared with subject matter experts 
and then undergo peer, District, and management reviews. Resource 
agencies may also review changes as needed. The update will include new 
direction to document preparers that specifies when additional project 
documentation is needed. Many of these additions stem from the 2017 
Audit findings and FDOTs 2017 Self-Assessment. The PD&E Manual update 
process is likely to eliminate many of the documentation issues found 
by FHWA in the 2017 and 2018 Audits.

Legal Sufficiency

    The team's review of FDOT's legal sufficiency program found that 
FDOT has structured the legal sufficiency process for the NEPA 
Assignment Program by having in-house counsel, as well as outside 
counsel with NEPA experience, available. We appreciate that FDOT has 
chosen to house their Special Counsel for Environmental Affairs and two 
staff attorneys under the direct supervision of the FDOT Deputy General 
Counsel.
    While no legal sufficiency determinations have been made by FDOT 
during the audit time frame, FDOT's Office of General Counsel (OGC) 
participates in monthly coordination meetings and topic-specific 
meetings with OEM and the districts. They also review other documents 
when requested for legal input. There is close collaboration throughout 
the process amongst and between OGC, OEM, and the district attorneys.

Training Program

    Through interviews with the OEM leadership the team learned that 
rather than preparing an annual training plan, they have a training 
program that is constantly being assessed, revised, and updated as an 
on-line program. The program includes training on a wide variety of 
subjects, and training is delivered both face-to-face and virtually. 
The FDOT staff said that training is a common topic of discussion of 
leadership as well as staff, including frequently asking about needed 
training.
Successful Practices
    The team learned through interviews FDOT closely tracks training 
rosters and registrations that evidence a broad number of training 
events to a high number of people. Over the past 12-14 months, FDOT 
trained over 2,000 people through 36 courses.
    The team learned that OEM is always looking at the training program 
to find ways to augment it. For example, FDOT is now working with the 
SHPO staff to develop topic-specific Webinars on how information for 
the SHPO is to be organized and projects documented. The FDOT also has 
worked with NOAA-NMFS on their concerns in developing training. These 
trainings, along with a new short Web-based training module on 
producing environmental documents, are waiting to be uploaded to the 
OEM website.
    The OEM leadership indicated in an interview that they have a 
number of staff that are new to FDOT, and, in general, have less than 5 
years of experience. These new staff members were mentored by seasoned 
staff to serve as a resource to help them understand FDOT's procedures 
and the key issues in NEPA. By monitoring the performance measures on 
compliance, OEM leadership indicate the mentoring is a successful 
practice.

Performance Measures

    The FDOT Self-Assessment Summary Report contained the results of 
FDOT's second report of its assessment of the NEPA Assignment Program 
and FDOT procedures compliance. This assessment, for the period between 
May 1, 2017, and April 30, 2018, entailed review of project files as 
well as results from a survey of Agency satisfaction. The report also 
included a discussion of FDOT's progress in meeting the performance 
measures. During the report period, there were no qualifying projects 
for Legal Sufficiency, NEPA Issue Resolution, and NEPA Approval Time 
Savings measures.

[[Page 43867]]

Successful Practices
    The FDOT has 14 performance metrics to monitor and assess 
accomplishment of the 4 performance measures in the MOU, Section 
10.2.1. The FDOT is actively monitoring these performance measures. 
Data for the performance metrics are generated and reported quarterly 
and annually in SWEPT. If FDOT identifies indicators that could affect 
their performance measures they can promptly take actions to address 
them.
    The OEM leadership stated in interviews that the FDOT timeliness 
measure is used both as a way to streamline their review process and to 
understand it better. For example, they told the team that FDOT has 
changed some of the time reporting measures for environmental review 
staff. Project review duration includes a need for every project to go 
through the electronic review comments (ERC) process first and then a 
formal review and approval period in SWEPT. When in SWEPT, there is a 
review process with a number of days assigned. The FDOT realized for 
certain projects, ones that have minor impacts, no ERC review was 
necessary which further streamlined the project review process. The OEM 
leadership also stated in an interview that the 30-day review period is 
being constantly monitored in order to ensure if a modification to 
procedure is needed, it can be made. It was also stated that during the 
first two rating periods no modification to the review period has been 
needed.

Documentation and Records Management

    The FDOT continues to use SWEPT as the NEPA file of record for 
federally funded projects. The FDOT has implemented several process 
improvements within SWEPT. Communication during the second audit cycle 
allowed staff to clarify many project level observations within the 
Audit process. The FDOT and FHWA have committed to continue 
communications to resolve issues identified within the audit process.
    Non-Compliance Observation #1: Some FDOT project files contain 
insufficient documentation to support the environmental analysis or 
decision.
    Both the MOU (subpart 10.2.1) and FDOT's PD&E Manual specify that 
documentation is needed to support compliance. The SWEPT has been 
identified as FDOT's project file of record, in which FDOT maintains 
approved reevaluations, CEs, EAs, and EISs. The team reviewed 105 
projects for the 2018 Audit #2 that constituted a statistically valid 
sample. As part of the initial project file review, the team observed 
that 54 of the 105 project files reviewed lacked documentation in SWEPT 
to support the environmental analysis or the basis for an FDOT 
decision. In some cases, there were multiple observations for one 
project.
    For example, one project file did not contain documentation of 
coordination with FHWA or USCG for the required (23 CFR 650.805 and 23 
CFR 650.807) navigability assessment in order to support a permit 
determination. Additional examples, where the team observed 
documentation deficiencies included commitments, planning consistency, 
and mitigation. The team also observed that some commitments to address 
project impacts through mitigation, avoidance, and minimization were 
not documented at the time of NEPA approval. When the environmental 
document lacks commitments for important project impacts, the project 
record does not reflect a complete consideration of the significance of 
a project's impacts. Another consequence is that some commitments are 
added after the NEPA decision, are not tracked, or get dropped, which 
is not in accordance with Federal regulations. (23 CFR 771.105(a), 23 
CFR 771.105(d), and 23 CFR 771.109(d)). Finally, project files were 
observed that did not include the Project Commitment Record for 
documenting commitments as required by the 2017 PD&E Manual.
    The team's comments on these projects were shared with FDOT for 
their consideration and the team received responses from FDOT. The FHWA 
and FDOT have productively worked together to successfully resolve 
insufficient documentation for 23 projects and uploaded existing 
documentation in SWEPT for 18 projects. The FDOT indicated that they 
have implemented or committed to implementing process improvements to 
address the deficiencies. The FDOT is expected to continue 
implementation of corrective actions that would address these issues.
    Update from 2017 Audit #1 Non-Compliance Observation #1: Some FDOT 
project files contain insufficient documentation to support the 
environmental analysis or decision.
    The FHWA reported a non-compliance observation related to some FDOT 
project files that lacked documentation to support the environmental 
analysis or decision as part of Audit #1. This non-compliance 
observation is based on a review that resulted in observations on 47 
projects, several of which had deficient documentation for more than 
one issue. The FDOT and FHWA have met over the past year and have 
productively worked together to resolve documentation issues from the 
previous audit. The FHWA shared comments on these projects with FDOT 
and they provided written responses. Based on these responses, FHWA and 
FDOT were able to successfully address many documentation issues 
through resolving a project observation (22 projects), FDOT uploading 
missing documentation in SWEPT (5 projects), or FDOT implementing or 
committed to implementing process improvements to address procedural 
deficiencies (39 projects). For example, FDOT updated their electronic 
Type 1 CE form in SWEPT to require certain supporting documentation be 
uploaded, which was confirmed through the Audit #2 FDOT staff 
interviews and project file reviews. The FDOT also included a direct 
link to the State Transportation Improvement Plan or Transportation 
Improvement Plan to ensure adequate documentation of planning 
consistency for all classes of action. The FDOT has made commendable 
strides to document planning consistency at NEPA approval. However, 
documentation of consistency with the metropolitan long-range 
transportation plans was missing for several projects and for a variety 
of classes of action. In addition, the 2018 FDOT Self-Assessment 
Summary states that FDOT initiated and completed a number of SWEPT 
system and programmatic enhancements to address the missing 
documentation noted during Audit #1. The FDOT is expected to continue 
implementation of corrective actions that would address these issues.

Finalizing This Report

    The FHWA provided a draft of the audit report to FDOT for a 14-day 
review and comment period. The team considered FDOT's comments in this 
draft audit report. The FHWA is publishing this notice in the Federal 
Register for a 30-day comment period in accordance with 23 U.S.C. 
327(g). No later than 60 days after the close of the comment period, 
FHWA will address all comments submitted to finalize this draft audit 
report pursuant to 23 U.S.C. 327(g)(B). Subsequently, FHWA will publish 
the final audit report in the Federal Register.
    The FHWA will consider the results of this audit in preparing the 
scope of the next annual audit. The next audit report will include a 
summary that describes the status of FDOT's

[[Page 43868]]

corrective and other actions taken in response to this audit's 
conclusions.

[FR Doc. 2019-18092 Filed 8-21-19; 8:45 am]
 BILLING CODE 4910-22-P